Flynt's Triumph Over Falwell A Pyrrhic Victory For The Press

March 3, 1988|By James Kilpatrick, Universal Press Syndicate

WASHINGTON — In 281 B.C., as Plutarch tells the tale, King Pyrrhus of Epirus set out to conquer the Romans. He had 25,000 infantry, 3,000 horses and 20 elephants. In 279 the opposing forces met at Asculum. Pyrrhus won, but at terrible cost. An aide complimented him on the victory.

''One more such victory,'' said the weary monarch, ''and we are lost.''

It is a long way from the glory that was Greece and the grandeur that was Rome to the pornographic pages of Hustler magazine. Make the leap. We of the press won a victory, so to speak, in the U.S. Supreme Court a few days ago. Under the repulsive aegis of Larry Flynt, publisher of Hustler, we won a victory over the Rev. Jerry Falwell of Lynchburg, Va. One more such victory and we may be lost.

The facts of the case are well-known. In its issue of November 1983, Hustler carried on its inside front cover what appeared to be a full-color ad for Campari liqueur. The company had been running a series of ads in which prominent people recalled ''the first time'' they had tasted Campari. Hustler's version was a parody, and a vicious parody at that.

The mock advertisement purported to quote Falwell on the first time he had sexual intercourse. This was ''during a drunken incestuous rendezvous with his mother in an outhouse.'' At the bottom of the ad, in the tiny type known as Surgeon General Light, appeared a notice: ''Fiction: Ad and Personality Parody.''

Falwell sued on three grounds -- invasion of privacy, malicious and willful libel, and intentional infliction of emotional distress. The presiding judge dismissed the count on privacy; the trial jury strangely concluded that Falwell had not been libeled because the parody ''could not reasonably be understood as describing actual facts or actual events.'' But the jury then awarded Falwell $200,000 in damages for the emotional distress he had suffered.

Last week the high court overturned the judgment. In a unanimous opinion written by Chief Justice William Rehnquist, the court held that public figures may not recover damages for the distress that results from ''speech that is patently offensive and is intended to inflict emotional injury.''

Rehnquist reasoned that the sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of public figures. Inevitably, such speech ''will not always be reasoned or moderate.'' It may be motivated by hatred or ill-will. It may be ''slashing and one- sided.'' Since the dawn of the Republic, political cartoonists have attacked with drawings ''beyond the bounds of good taste and conventional manners.''

Falwell had argued that Hustler's parody went beyond the political cartoons of Thomas Nast a century ago. The fake Campari ad hit a new depth of ''outrageousness.'' Rehnquist was not impressed. There must be some principled standard for determining what speech is beyond constitutional protection, ''but we are quite sure that the pejorative description 'outrageous' does not supply one.'' If judgments could be awarded for ''outrageous'' speech, jurors would be free to impose liability on the basis of their own tastes or views.

In any event, said the court, ''the free flow of ideas and opinions on matters of public interest and concern'' must be protected. Public figures retain a right to sue for libel based upon false statements of fact made with reckless disregard for truth. They cannot recover for ''a caricature such as the ad parody involved here.''

Very well. It was a victory for freedom of the press. If the court had upheld the verdict in Falwell's favor, a floodgate might have opened for lawsuits based on ''emotional distress.'' Cartoonists and editorial writers would have been rendered impotent, and much of the remaining vigor of our press would have drained away. So we rejoice.

All the same, the decision is worrisome. Hustler's degrading parody had nothing to do with ''ideas and opinions on matters of public interest and concern.'' It was miles removed from ''the sort of robust political debate encouraged by the First Amendment.'' This was not ''political and social discourse.'' This was a brutal, savage personal attack.

Those of us in the press, whose stock in trade often is to hurt the feelings of public figures, ought to remember King Pyrrhus. One more such victory, and the people who gave us the First Amendment may rise in irresistible wrath and take it away.

Falwell was grievously wronged. Our precious right of a free press should not obscure that undeniable fact.